The Navy-Marine Corps Court of Criminal Appeals set oral argument in United States v. Wuterich for June 25 at 0900. For prior posts on the case . . . search for Wuterich above, you’ll find a couple. Here is the oral argument calendar for June. Issues up for argument are:

I. WHETHER A “REPORTER’S PRIVILEGE” APPLIES IN MILITARY COURTS-MARTIAL UNDER THE FIRST AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES AND MILITARY RULE OF EVIDENCE 501(a)(1).

II. WHETHER A “REPORTER’S PRIVILEGE” APPLIES IN MILITARY COURTS-MARTIAL UNDER MILITARY RULE OF EVIDENCE 501(a)(4) AS A PRINCIPAL OF COMMON LAW GENERALLY RECOGNIZED IN THE TRIAL OF CRIMINAL CASES IN THE UNITED STATES DISTRICT COURTS PURUSANT [sic] TO RULE 501 OF THE FEDERAL RULES OF EVIDENCE.

III. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN APPLYING A “REPORTER’S PRIVILEGE” UNDER MILITARY RULE OF EVIDENCE 501(a)(4) AS THE BASIS FOR QUASHING A GOVERNMENT SUBPOENA FOR CBS NEWS NONBROADCAST AUDIO-VIDEO “OUTTAKES” OF AN INTERVIEW WITH THE ACCUSED THAT WERE OTHERWISE DISCOVERABLE UNDER RULE FOR COURTS-MARTIAL 703.

Question: Does this warrant some sort of discretionary delay in the SCOTUS case? We’ll see, I guess.

H/T to Anon 2 Jun 1059 TWIMJ Commenter.

5 Responses to “Wuterich Oral Argument Scheduled”

  1. egn says:

    I don't see how NMCCA even gets to the so-called "reporter's privilege" issue when Judge Meeks already determined that the information was only "nice to have."

    The standard for determining whether a party is entitled to evidence through compulsory process under RCM 703(f)(1)is "relevant and necessary." If the outtakes were cumulative of other statements the accused made, they may very well be relevant, but it's doubtful whether they are necessary.

    The issues call to mind a similar set of circumstances in a case CAAF decided in 2004, U.S. v. Rodriguez, 60 M.J. 239 (2004), except in that case, it was the defense who sought outtakes from a NBC Nightly News broadcast. Before reaching the newsgathering privilege issue, CAAF determined that the defense failed to show that the outtakes existed, and were therefore relevant and necessary.

  2. Anonymous says:

    "Nice to have" is not a standard.

  3. Anonymous says:

    Where are the briefs? They should be interesting.

  4. Anonymous says:

    Egn: In this case 3rd party CBS admits the footage exists, the defense admits the footage exists so the next step would be to determine if a priv. exists.

  5. egn says:

    Anon 1043: There is an intervening step before determining whether privilege exists. That would be determining that the evidence is relevant and necessary.